Pondering the Politics of Private Procedures: The Case of ICANN
Jay P. Kesan
University of Illinois College of Law
Andres A. Gallo
University of North Florida
November 6, 2007
I/S A Journal of Law and Policy, Vol. 4, pp. 345-409, 2008
Illinois Public Law Research Paper No. 07-11
The creation of ICANN was sought by the United States government to promote international cooperation in the governance of the Internet based on a bottom-up system in which government intervention was limited, if not eliminated. However, as the Internet has become a global phenomenon this initiative has faced increasing opposition from the international community. As we have shown in this work, the evolution of ICANN reveals how it slowly departed from its mere technical role into a more political one, in which all groups and constituencies try to impose their preferences. During the reform movement initiated from inside ICANN, different constituencies tried to exploit the situation by gaining power positions in the new structure. The political strength of different groups and constituencies reversed some of the initial reforms and produced a totally new structure. Reform attempts from inside ICANN were challenged by the international community. These efforts concentrated on changing the main structure of ICANN into a multilateral organization controlled by international governments and removing the direct control of ICANN from the United States government. In the end, even though the proposals seem to look for different structures to regulate domain names and numbers on the Internet, they represent a political struggle between opposite points of view.
Among the results of our analysis we can highlight the following: first, as a result of the reform process, the private sector consolidated its political position in the ICANN structure, at least in the short run. With the new Bylaws, the private sector retained some of the power they had before and even gained more power. Among the winners of the reforms are: the GNSO constituencies, which gained important power spaces in the new design, ASO members, which had some gains, but more importantly, are still debating their future with a possibly more expansive relationship with ICANN, and the ccNSO, which were recognized as an independent Supporting Organization. Nonetheless, the inside-out attempt to reform proved to be weak because it failed to bring outside constituencies to the governance body and created opposition from the international community.
The inside-out reform analysis allowed us to examine the political strength of its different constituencies. This process also showed how ICANN has become more of a political instrument, instead of a technical corporation. An indication of this is that most of the debate on the reform was based on how to divide the power inside ICANN, more specifically inside the Board of Directors, and how to maximize the capacity of each group to enforce their policies.
Second, our analysis shows how the inside-out reforms sought to enhance international cooperation. Creating a Supporting Organization for the ccNSO and the incentives for international governments to participate in a better CGA opened the ICANN gates to more extensive international participation in policymaking. However, the international community did not respond adequately to the reform and tried to generate its own model for Internet Governance.
The response of the International community to the regulatory regime of ICANN was the creation of a new organization with international ties and controlled by governments. This proposal, as summarized in the WGIG report, sought to overhaul ICANN and take away the United States' direct control of ICANN and the management of names and numbers on the Internet. As a result, we face a struggle between two different types of regulation, a bottom-up approach, with more participation from the private sector, and a top-down approach which intends to take Internet governance into the international arena.
As shown in this work, Internet governance has become a hot political issue, and the organizations in charge of managing the regulatory regime will reflect these political preferences. The effectiveness of any of these governance regimes will depend on how well the specific structure of power provides an opportunity for consensus. In the end, the reform and the political struggle behind it have unmasked the political nature of ICANN. As a result, its future will depend on the consensus of its constituents and on the struggle between state and private sectors. In this debate, the United States government is one of the only governments defending ICANN in its current structure because of the contract that ties ICANN directly to the U.S. Department of Commerce. On the other hand, the international community is pushing the U.S. to hand over its sole control of ICANN.
Given the tension between both parties, we believe that this transition could move forward through the creation of a supranational entity in charge, not just of ICANN's responsibilities, but also of other areas related to the Internet, i.e., e-commerce, Internet security. We call this organization the World Internet Governance Organization (WIGO), managed by a board representing the developed countries and the technical groups with a stake in the Internet. This would entail an institution organized somewhere in between the unilateral regime represented by ICANN and the multilateral approach proposed by the United Nations. WIGO would allow both parties to obtain some of their objectives. The U.S. would retain some power in designing the system, while other developed and developing countries would have more say in the direction of the system. A well-thought proposal that considers the foremost needs of the Internet will have a greater chance of succeeding than individual attempts to overtake over the governance of the Internet. Furthermore, it will generate a point of convergence for the diverse preferences of international stakeholders. Nonetheless, the success of such a proposal requires countries to realize that unorganized or individual attempts to regulate will not carry the day.
Number of Pages in PDF File: 66Accepted Paper Series
Date posted: November 8, 2007 ; Last revised: September 4, 2008
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